MNT Based on Newly Discovered EvidenceA party seeking a new trial on grounds of newly discovered evidence must demonstrate that: (1) the evidence has come to his or her knowledge since the trial, (2) the failure to discover the evidence sooner was not due to a lack of diligence, (3) the evidence is not cumulative, and (4) the evidence is so material it would probably produce a different result if a new trial were granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). It is also sometimes said that such evidence cannot be merely for the purpose of impeaching the testimony of the opposing party. See New Amsterdam Cas. Co. v. Jordan, 359 S.W.2d 864, 866 (Tex. 1962); Fantasy Ranch, Inc. v. City of Arlington, 193 S.W.3d 605, 615 (Tex. App.—Fort Worth 2006, pet. denied); Hughes Drilling Fluids, Inc., Div. of Hughes Tool Co. v. Eubanks, 729 S.W.2d 759, 763 (Tex. App.—Houston [14th Dist.] 1986), writ granted w.r.m., 742 S.W.2d 275 (Tex. 1987). We review a trial court’s denial of a motion for new trial for an abuse of discretion. Waffle House, 313 S.W.3d at 813.

The legal effect of an order granting a new trial vacates the original judgment, and returns the case to the trial court as if no previous trial had been conducted. Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex.App.—Houston [14th Dist.] 2003, pet. denied); Long John Silver’s Inc. v. Martinez, 850 S.W.2d773, 777 (Tex.App.—San Antonio 1993, writ dism’d w.o.j.).

08-0312 PRUDENCE DIVINCENZO v. SEARS, ROEBUCK AND CO.; from Dallas County; 5th district(05-07-00525-CV, ___ SW3d ___, 03-10-08, pet. denied Jun 2008)(motion for new trial, nonsuit)DiVincenzo attempts in this cause to appeal the trial court's finding concerning the date of Sears's notice, the order granting Sears a new trial, and the order denying reconsideration of those two rulings. This attempt necessarily fails. We agree with Sears that the substance of DiVincenzo's appeal is a challenge to the trial court's order granting a new trial. An order granting a motion for new trial is generally not reviewable on appeal. Wall v. Tex. Dep't of Family & Protective Servs., 173 S.W.3d 178, 184 n.2 (Tex. App.-Austin 2005, no pet.) (citing Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005)). Moreover, Divincenzo's voluntary non-suit vitiated all interlocutory orders.

Ben contends in his third and fourth issues that the court abused its discretion by denying his motion for new trial which: (a) challenged the denial of his oral motion for continuance; (b) responded to Cheryl’s and Deborah’s objections to his summary-judgment proof; and (c) presented additional evidence in opposition to Cheryl’s and Deborah’s summary-judgment motion.

Because the court did not abuse its discretion by denying Ben’s oral continuance motion, the court necessarily did not abuse its discretion by denying a motion for new trial challenging that ruling.

We have already noted that the court never ruled on Cheryl’s and Deborah’s objections to Ben’s summary-judgment evidence. Further, we have considered Ben’s evidence in our review of the court’s judgment. Thus, the court did not abuse its discretion insofar as it overruled Ben’s motion for new trial with regard to those objections.

“[A] trial judge may accept summary judgment evidence filed late, even after summary judgment, as long as he affirmatively indicates in the record that he accepted or considered it.” Stephens v. Dolcefino, 126 S.W.3d 120, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Here, the court’s order denying Ben’s motion for new trial states in pertinent part that the court reviewed “all the pleadings timely filed.” There is nothing in the record of the hearing on the motion for new trial or the written order denying that motion which affirmatively indicates that the trial court accepted the additional evidence proffered by Ben with the motion for new trial.

The court would have been well within its discretion to consider this additional evidence or reject it. From the record before us, we cannot say that the court abused its discretion by denying Ben’s motion for new trial insofar as that motion presented additional evidence for the court’s consideration.[9]

Lee suggests he was entitled to a new trial because his expert=s report constituted "newly discovered evidence." A party seeking a new trial based on newly discovered evidence must establish (1) the evidence has come to his knowledge since trial, (2) it was not owing to want of due diligence that the evidence did not come to his attention sooner, (3) the evidence is not cumulative, and (4) the evidence is so material that it would probably produce a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003). We review the denial of a motion for new trial under an abuse-of-discretion standard. Id.

In his timely motion for new trial, Lee did not mention the expert or attach his report, much less argue that he satisfied the criteria for obtaining a new trial based on newly discovered evidence. Although Lee suggests the expert was discussed at a hearing on the motion for new trial, we have no record of the hearing. Rather, Lee mentioned the expert opinion in his two pleadings entitled, "Submission on Reconsidering Plaintiff's Motion for New Trial," filed after the trial court denied his motion for new trial. Nevertheless, in these pleadings, Lee did not argue that he satisfied the criteria for obtaining a new trial based on newly discovered evidence.[3] For instance, he failed to offer any reason he was unable to obtain an expert opinion before the trial court granted summary judgment, considering his suit had been on filed more than one and a half years at the time of the ruling. Accordingly, the trial court did not abuse its discretion by refusing to grant a new trial based on newly discovered evidence. We overrule Lee's second issue.

08-0191 CONNIE ALLEN, SURVIVING SPOUSE AND LEGAL REPRESENTATIVE OF GRANVILLE DEAN ALLEN v. TED C. SCOTT, M.D.; from Lubbock County; 7th district (07-06-00075-CV, ___ SW3d ___, 01-25-08) (motion for new trial, new evidence, exclusion of evidence) Connie Allen, surviving spouse and legal representative of Granville Dean Allen, appeals from a judgment denying her recovery against Ted C. Scott, M.D. Through six issues, she contends that the trial court erred by 1) denying her motion for new trial, 2) instructing a verdict on the issue of exemplary damages and 3) excluding her expert’s published article. We affirm.

In Perez's fourth issue, he contends that the trial court erred in denying his motion for new trial without a hearing. Perez argues that a trial court has no power to refuse a hearing on a motion for new trial.

The resolution of a motion for new trial is left up to the trial court's discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). The trial court's denial of such a motion is not to be disturbed on appeal unless there is an abuse of that discretion. Id.

Texas law does not require a trial court to hold a hearing before denying a motion for new trial if the motion does not present a complaint on which evidence must be heard. See Cecil v. Smith, 804 S.W.2d 509, 512 n.5 (Tex. 1991). "Certainly it would not be error for the court to refuse to hold a hearing on a motion for a new trial except where it would be necessary to hear evidence upon a matter such as jury misconduct." University of Tex. v. Morris, 352 S.W.2d 947, 949 (Tex. 1962). Perez's motion for new trial does not present any issues on which evidence must be heard, but merely reasserts the legal arguments urged at trial. We hold that the trial court did not err in denying Perez's motion for new trial without a hearing. Perez's fourth issue is overruled.

07-0729 JEFFREY WEISS v. JP MORGAN CHASE BANK, N.A. F/K/A MORGAN GUARANTY TRUST COMPANY OF NEW YORK; from Dallas County; 5th district (05-06-00940-CV, ___ SW3d ___, 07-20-07, pet. denied Jan 2008) (domestication of foreign judgment, pleanary power, motion for new trial overruled by operation of law, no hearing, diligence)Appellant Jeffrey Weiss appeals the trial court's decision not to hear his motion for new trial during the period after that motion was overruled by operation of law, but before the trial court's plenary power expired. We affirm the trial court's judgment. The trial court acted within its discretion because Weiss did not set his motion for new trial for hearing before the motion was overruled by operation of law, and did not demonstrate diligence in attempting to do so.

RULE 329b. TIME FOR FILING MOTIONS

The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments (other than motions to correct the record under Rule 316) in all district and county courts:

(a) A motion for new trial, if filed, shall be filed prior to or within thirty days after thejudgment or other order complained of is signed.(b) One or more amended motions for new trial may be filed without leave of courtbefore any preceding motion for new trial filed by the movant is overruled and withinthirty days after the judgment or other order complained of is signed.(c) In the event an original or amended motion for new trial or a motion to modify,correct or reform a judgment is not determined by written order signed withinseventy-five days after the judgment was signed, it shall be considered overruled byoperation of law on expiration of that period.(d) The trial court, regardless of whether an appeal has been perfected, has plenary powerto grant a new trial or to vacate, modify, correct, or reform the judgment within thirtydays after the judgment is signed.(e) If a motion for new trial is timely filed by any party, the trial court, regardless ofwhether an appeal has been perfected, has plenary power to grant a new trial or tovacate, modify, correct, or reform the judgment until thirty days after all such timely filedmotions are overruled, either by a written and signed order or by operation oflaw, whichever occurs first.(f) On expiration of the time within which the trial court has plenary power, a judgmentcannot be set aside by the trial court except by bill of review for sufficient cause,filed within the time allowed by law; provided that the court may at any time correcta clerical error in the record of a judgment and render judgment nunc pro tunc underRule 316, and may also sign an order declaring a previous judgment or order to bevoid because signed after the court's plenary power had expired.(g) A motion to modify, correct, or reform a judgment (as distinguished from motion tocorrect the record of a judgment under Rule 316), if filed, shall be filed anddetermined within the time prescribed by this rule for a motion for new trial and shallextend the trial court's plenary power and the time for perfecting an appeal in thesame manner as a motion for new trial. Each such motion shall be in writing andsigned by the party or his attorney and shall specify the respects in which thejudgment should be modified, corrected, or reformed. The overruling of such amotion shall not preclude the filing of a motion for new trial, nor shall the overrulingof a motion for new trial preclude the filing of a motion to modify, correct, or reform.(h) If a judgment is modified, corrected or reformed in any respect, the time for appealshall run from the time the modified, corrected, or reformed judgment is signed, butif a correction is made pursuant to Rule 316 after expiration of the period of plenarypower provided by this rule, no complaint shall be heard on appeal that could havebeen presented in an appeal from the original judgment.